WASHINGTON — Attorney General Merrick Garland is coming under increasingly intense criticism from progressives who say he is protecting former President Donald Trump.
But it’s not Trump who stands to be the primary beneficiary of Garland’s shield; it’s President Joe Biden.
The points of tension are myriad, from backing the last administration’s immigration and environmental policies to defending Trump in a defamation suit brought by E. Jean Carroll, who says Trump sexually assaulted her and later caused her harm by saying she lied about it.
But the line of demarcation is singular: Garland will take all of the heat for Biden’s promise that he would bolster the rule of law by keeping a healthy distance — maybe more than a healthy distance — from the Justice Department.
“More than anything, we need to restore the honor, the integrity, the independence of Department of Justice in this nation that has been so badly damaged,” Biden said when he introduced Garland as his choice to be the nation’s top prosecutor in early January. “I want to be clear to those who lead this department, who you will serve. You won’t work for me. … Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation, to guarantee justice.”
One of the institutions Garland is guarding is the presidency, which both now and in the future offers shelter for Biden. For time immemorial, the Justice Department, from one president to the next, maintains positions that limit the exposure of the executive branch to legal jeopardy and public embarrassment.
That was the case recently when DOJ asserted executive privilege to limit the scope of former Trump White House counsel Don McGahn’s testimony to Congress about the Russia investigation.
“In this instance, and in others, the assertion of executive privilege appears designed to obscure the president’s misdeeds, and the DOJ’s support of that claim sets back efforts to bring the truth about Trump’s presidency to light,” Claire O. Finkelstein, a University of Pennsylvania law professor, and Richard Painter, who was an ethics lawyer in President George W. Bush’s White House, wrote in Slate.
So it should come as little surprise that DOJ is fighting to keep secret deliberations surrounding then-Attorney General William Barr’s decision not to prosecute Trump over possible obstruction of justice in the Russia investigation. But Democrats are furious over that effort.
Nine of the 11 Democratic members of the Senate Judiciary Committee wrote to Garland in mid-May to urge him not to appeal a federal judge’s ruling that DOJ had to fully release an Office of Legal Counsel memo explaining Barr’s decision. They noted that District Judge Amy Berman Jackson had slammed the Trump-era Justice Department for misleading the court about the contents of the memo.
“Relying on inaccurate statements to support baseless assertions of the deliberative process privilege is problematic in any case; it is all the more indefensible when DOJ is arguing against the disclosure of documents related to serious abuses of power by President Trump,” the senators wrote.
DOJ filed a motion to appeal the ruling while releasing some of the redacted memo.
Similarly, Garland’s Justice Department is trying to protect former Education Secretary Betsy DeVos from having to testify in a student loan case. And, even though Biden railed against Trump using the department to defend him in Carroll’s lawsuit — both before and after the election — Garland’s decision to take Trump’s side in that case will provide a stronger argument for Biden and his successors if they use federal resources to defend themselves in civil suits.
For some of Biden’s supporters, Garland’s moves are a sign that Biden is keeping faith with the vow to strengthen institutions and depoliticize American justice. Some of his allies believe it’s better politically — and for the country — to move on from Trump than to remain fixated on him.
But for progressives, these decisions and others are reason to question whether Garland was the right pick to lead the department. They are eager to hold Trump accountable for what they see as potentially criminal activity. He was twice impeached by the House but acquitted by the Senate both times. And they see a Democratic attorney general allowing a former Republican president to surf above the law.
Their voices were amplified this week when The New York Times reported that Trump’s Justice Department pursued an investigation into members of the House Intelligence Committee that subpoenaed metadata from Apple. That probe is closed, House Intelligence Committee Chairman Adam Schiff, D-Calif., said in an interview with MSNBC’s Rachel Maddow, but it points to a “terrible abuse of power” by Trump in using the agency to go after his political adversaries in Congress.
“It violates, I think, the separation of powers, but it also makes the Department of Justice a fully owned subsidiary of the president’s personal legal interests,” said Schiff, who was targeted in the subpoena.
At a Senate hearing Wednesday, Garland defended DOJ’s course and sought to draw a line between issues of law and those of policy.
“The job of the Justice Department in making decisions in law is not to back any administration, previous or present; our job is to represent the American people,” Garland said.
“Matters of policy of course are completely different, and that explains why we have reversed policies of the previous administration many times over the last three months and why we have initiated our own policies that are distinctly different from those of the previous administration,” he said.
That’s the other way Garland provides cover for Biden: Because the president is taking pains to show the department is independent, he can distance himself more easily from unpopular policy positions.
At the same time Garland is taking hits from the political left, he has also taken actions that should please progressives — even though they often get less attention than Trump headlines.
For example, the Justice Department is now defending the Affordable Care Act, which it fought under Trump, and it reversed a Trump-era policy denying federal grant money to so-called sanctuary cities. And on Friday, Garland announced DOJ would double the number of staff dedicated to protecting voting rights within the department’s Civil Rights Division.
Some legal experts say it’s too early to pass judgment on an attorney general who has been in office for less than four months.
“He has a huge mess to clean up after four years of the Trump administration flouting the rule of law and norms of decency and politicizing the Justice Department,” said Kim Wehle, a former federal prosecutor and a law professor at the University of Baltimore.
“The fact that he isn’t reflexively taking stands that many would expect a Biden DOJ to do politically is a good thing for the legitimacy of the department,” Wehle said. “He has discretion to exercise, to be sure, and he is using it. I think it’s too early for condemnation or praise.”